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Kagan File, News, Statements, U.S. Supreme Court

AUL’s Kagan File: The First Two Weeks


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 24, 2010

RE: Elena Kagan File:  Summary of File May 10 – 21


Beginning today, we will recap our weekly memos each Monday.  Today’s file document, however, is a summary of our memos from the past two weeks (May 10th through May 21st).  Our full analyses, including citations, for each of these documents are linked below.

  1. The“Judicial Hero” Memo – In 2006, Elena Kagan called Aharon Barak “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”Barak, a retired chief judge of the Supreme Court of Israel, has espoused such activist and antidemocratic views as that a judge “should adapt the law to life’s changing needs” using “the tools that the law provides (such as interpretation, developing the common law, balancing, the use of comparative law).” To interpret law, “The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself. The statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”
  2. The“Abortion Connection” Memo – Kagan has contributed financially to the National Partnership for Women and Families
    (NPWF), an organization whose goal, in its own words, is “to increase women’s access to…reproductive health services and block attempts to limit reproductive rights…and to give every woman access to…abortion services….”  Additionally, numerous abortion advocates have vocalized support for Kagan’s nomination, including Judith Lichtman (Senior Advisor to the NPWF), Debra Ness (NPWF’s president and a member of the Board of Directors of Emily’s List), and Stephanie Schriock (current president of Emily’s List).
  3. The “Abortion Funding” Memo – Kagan wrote articles that criticized the Supreme Court decision in Rust v. Sullivan, where the Court upheld the constitutionality of Dept. of Health and Human Services’ regulations that prohibit Title X family planning funds from being “used in programs where abortion is a method of family planning.”  This prohibition also applies to promoting and counseling on abortion.  Kagan argues that the Title X regulations amount to unconstitutional viewpoint discrimination.
  4. The Marshall Memo – While serving as a clerk for Justice Thurgood Marshall on the United States Supreme Court in October
    1987, Elena Kagan wrote a memo arguing that “all religious organizations should be off limits” from receiving federal funding to support projects authorized by the Adolescent Family Life Act (including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, residential care, child care, etc.) because those projects are “so close to the central concerns of religion.”  The Supreme Court rejected Kagan’s position in Bowen v. Kendrick, a case in which AUL was involved.  Kagan’s memo raises the concern that she would be hostile to government programs that fund pregnancy care
  5. The“Pro-Abortion Politicians” Memo – Kagan has consistently worked for pro-abortion officials, including Judge Abner
    Mikva, Justice Thurgood Marshall, Senator Joe Biden, President Bill Clinton, and President Barak Obama. As pro-abortion Senator Barbara Boxer stated, “I have no reason to think anything else except that [Kagan] would be a very strong supporter
    of privacy rights because everyone she worked for held that view.”
  6. The “Partial-Birth Abortion Ban” Memo – While working as a counsel for President Clinton, Kagan co-authored a memo addressing amendments proposed to the Partial-Birth Abortion Ban Act of 1997.  In the memo, she stated that “The Office
    of Legal Counsel of the Justice Department similarly believes that both the Daschle and the Feinstein amendments, properly read, violate Roe because they countenance tradeoffs involving women’s health.”  If Kagan believes that the Daschle
    amendment, which included exceptions so broad that they would have permitted every abortion, was unconstitutional, she would certainly be hostile to any true pro-life legislation.

    Kagan suggested the President support language she believed would be unconstitutional.  She stated “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto.”
  7. The “Marshall on Abortion” Memo – Elena Kagan has expressed a deep affection for the Supreme Court Justice she clerked for, Thurgood Marshall.  Justice Marshall believed that abortion is an unrestricted fundamental right, and did not uphold
    reasonable state restrictions.  In addition, Marshall was in favor of using the Equal Protection clause to force taxpayers into paying for abortions because abortion offered “an escape” from poverty and racial injustice. If Elena Kagan shares Justice Marshall’s view that reasonable abortion restrictions are unconstitutional, any victory that the pro-life movement has won could be quickly overturned.
  8. Kagan’s Judicial Hero Part 2 – Elena Kagan’s professed “judicial hero,” Aharon Barak, states that he is not a judicial activist.  However, he believes that courts may change how they interpret a statute based on “social needs.”  However, in a democracy, the legislature expresses the will of the people regarding changing values and concerns. In Barak’s judicial philosophy, judges should assume that role where they find, in their view, a gap. In fact, Barak expects the “the need to bridge law and society will become more pressing. Social changes are becoming more and more intensive…The legislature cannot always keep pace with these changes. Society will need courts more than ever to bridge the gaps between law and life. This is the case for gaps created by technological changes…for gaps created by social changes, such as attitudes toward religion, the institution of marriage, social rights, and other changes…”In other words, Barak believes in “government by the judiciary,” a novel theory, one which our Founding Fathers never embraced.
  9. Constitutional Law or International Law – Kagan led a change of Harvard Law School’s curriculum to emphasize International law and to de-emphasize American Constitutional law.  Kagan has stated:  “The courses in international and comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.”  Would Kagan’s opinions as Supreme Court Justice rely on international laws and the “choices different societies” have made instead of the U.S. Constitution?